William v. Holder , 359 F. App'x 370 ( 2009 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1097
TUNBOSUN OLAWALE WILLIAM,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Argued: December 2, 2009 Decided: December 30, 2009
Before WILKINSON, GREGORY, and DUNCAN, Circuit Judges.
Petition dismissed by unpublished per curiam opinion.
ARGUED: Amy Lamoureux Riella, VINSON & ELKINS, Washington, D.C.,
for Petitioner. Woei-Tyng Daniel Shieh, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent. ON
BRIEF: Craig D. Margolis, Tirzah S. Lollar, VINSON & ELKINS,
Washington, D.C., for Petitioner. Tony West, Assistant Attorney
General, Civil Division, Susan K. Houser, Senior Litigation
Counsel, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Tunbosun Olawale William (“William”) petitions this court
for review of an order of the Board of Immigration Appeals (the
“BIA”) declining to exercise its sua sponte authority to reopen
his petition for review of his removal proceedings. Because our
precedent in Mosere v. Mukasey, 552 F.3d 397 (4th Cir. 2009),
provides that we lack jurisdiction to review the BIA’s refusal
to reopen deportation proceedings sua sponte, we must dismiss
the petition for review. 1
I.
On November 28, 1997, Immigration and Naturalization
Services (the “INS”) issued a notice to appear to show cause to
William, a native citizen of Nigeria, alleging that he was
eligible for removal from the United States as an aggravated
felon based on his conviction for receipt of a stolen credit
card. On March 9, 1998, INS made a motion to amend the notice
to appear, to include an additional charge of removability for
having committed a crime involving moral turpitude. On
1
William argues that by consistently allowing reopening
where a petitioner has been removed on the basis of a criminal
conviction that was later vacated, the BIA has effectively
cabined its discretion. Because we find this argument
unavailing on these facts, however, we need not resolve that
issue here.
2
September 3, 1998, the immigration judge (the “IJ”) conducted
the removal proceedings, at which he allowed the amendment and
also found William removable for having committed a crime of
moral turpitude. On November 30, 2000, William sought a waiver
of inadmissibility in order to apply for an adjustment of status
based on a petition filed by his wife. On February 19, 2002,
the IJ denied the waiver application, finding William did not
have the required seven years of continuous lawful residence.
On October 15, 2003, the BIA affirmed the IJ’s decision.
William filed a motion to reconsider, which the BIA denied
on March 29, 2004. William was removed from the country on July
11, 2005. On December 21, 2005, William filed a motion to
reopen with the BIA, asserting that the criminal conviction
underlying his charge of removability for having committed a
crime of moral turpitude had been vacated by the state court
that entered it on October 24, 2005. According to William, he
had filed a writ of error coram nobis, asserting that he had
never been advised of his Fifth Amendment rights against self-
incrimination. William alleged that the state court vacated his
conviction as a result of that error.
On February 6, 2006, the BIA refused to consider the motion
to reopen, noting that William had already been removed from the
country and that 8 C.F.R. § 1003.2(d) barred a person from
3
moving to reopen once removal had been finalized. 2 William
petitioned this court for review. In William v. Gonzales, 499
F.3d 329 (4th Cir. 2007), we held that in light of the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996 (the
“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009 (codified in
scattered sections of 8 U.S.C.), 8 C.F.R. § 1003.2(d) was no
longer valid. We further held that pursuant to 8 U.S.C. §
1229a(c)(7)(A), an alien had the right to file one motion to
reopen, regardless of whether he is present in the United States
when the motion is filed. William, 499 F.3d at 333.
Accordingly, we granted the petition for review, vacated the
BIA’s order, and remanded for further proceedings consistent
with the opinion. Id. at 334.
On remand, the BIA again denied William’s motion to reopen.
Initially, the BIA noted that after we issued William, it filed
a precedent decision reaffirming the conclusion that 8 C.F.R. §
1003.2(d) was a binding regulation that precluded the BIA from
considering motions to reopen filed by aliens who have left the
country after being ordered removed. The BIA acknowledged,
however, that William was binding precedent within the Fourth
2
8 C.F.R. § 1003.2(d) states, “A motion to reopen or a
motion to reconsider shall not be made by or on behalf of a
person who is the subject of exclusion, deportation, or removal
proceedings subsequent to his or her departure from the United
States.”
4
Circuit. Upon consideration of the merits of William’s motion,
the BIA noted that motions to reopen are disfavored in the
interests of finality and the conservation of administrative
resources. The BIA further noted that it generally does not
consider motions to reopen that are filed after the ninety-day
deadline.
The BIA acknowledged its discretionary authority to reopen
cases sua sponte, but stated that it reserves reopening in such
instances as an “extraordinary remedy reserved for truly
exceptional situations.” J.A. 774. The BIA noted that every
federal court to have considered the question has found that the
BIA’s decision to exercise its sua sponte authority to reopen is
not reviewable.
The BIA then held that vacatur of William’s criminal
conviction was not an exceptional circumstance warranting
reopening. The BIA stated:
[W]hen a motion to reopen is filed long after the
relevant removal order has become final, long after
the statutory deadline for seeking reopening has
passed and, indeed, long after the movant has in fact
been physically removed from the United States
(thereby consummating the removal proceedings in every
legal sense), we believe the imperative of finality
forbids reopening except upon a showing that
enforcement of the removal order would constitute a
gross miscarriage of justice.
J.A. 775. The BIA stated that a removal order results in a
gross miscarriage of justice “only if the order clearly could
5
not have withstood judicial scrutiny under the law in effect at
the time of its issuance or execution.” Id. The BIA found that
at the time William’s removal order was entered and William was
removed, the criminal conviction was a valid factual predicate
for his removal. The BIA further found that William did not
seek to vacate his conviction until after he was removed. The
BIA thus noted that because William “sle[pt] on his rights”
until after his removal, the enforcement of the order of removal
was not a miscarriage of justice. J.A. 776 (internal quotations
omitted) (alterations in original).
The BIA did state that a vacatur of a criminal conviction
can sometimes justify invocation of its sua sponte reopening
authority. Specifically, the BIA noted that the result might
have been different if William sought vacatur before his removal
or if the vacatur was based on new evidence that was not
reasonably available until after he was removed. The Board then
noted that in this case, even if it had granted the motion to
reopen, William would not have been able to regain his lawful
permanent resident status. The BIA stated:
[E]ven were we to grant the respondent’s motion he
could not return to this country except upon
compliance with the [Department of Homeland
Security’s] documentary and “admission” requirements,
matters wholly out of our control, at least in the
first instance. As the DHS notes in its brief,
however, such admission would not be available to the
respondent, absent a waiver, because his 2005 removal
6
precludes him from seeking admission for a period of
10 years. 3
J.A. 776.
The BIA therefore denied William’s motion to reopen and
declined to reopen the matter sua sponte. William filed a
timely petition for review.
II.
William argues that the BIA erred in refusing to exercise
its discretion to reopen his case sua sponte. 4 8 C.F.R. §
1003.2(a) states in relevant part, “The [BIA] may at any time
reopen or reconsider on its own motion any case in which it has
rendered a decision.” 5 In Mosere v. Mukasey, 552 F.3d 397 (4th
3
The “requirements” refer to the fact that William, having
been outside the United States more than 180 days, would be
seeking “admission” and, having been ordered removed, could not
receive it for ten years after removal. See 8 U.S.C. §
1182(a)(9)(ii)(I). The “waiver” refers to a discretionary
waiver under former § 212 of the Immigration and Naturalization
Act (the “INA”), which was repealed by the IIRIRA. Massis v.
Mukasey, 549 F.3d 631, 633 n.1 (4th Cir. 2008).
4
William does not challenge the BIA’s denial of his
untimely motion to reopen.
5
The agency regulation 8 C.F.R. § 1003.2(a) is not
expressly based on statute. Indeed, “no statutory language
authorizes the BIA to reconsider a deportation proceeding sua
sponte.” Belay-Gebru v. I.N.S., 327 F.3d 998, 1001 (10th Cir.
2003); see also Tamenut, 521 F.3d at 1004. Nevertheless, ten
federal courts of appeals, including ours, have held that the
decision to reopen is not disallowed but rather a matter of
agency discretion.
7
Cir. 2009), we considered this very regulation, and noted that
it “provides no guidance as to the BIA’s appropriate course of
action, sets forth no factors . . . , places no constraints on
the BIA’s discretion, and specifies no standards for a court to
use to cabin the BIA’s discretion.” Mosere, 552 F.3d at 401(quoting Tamenut v. Mukasey, 521 F.3d 1000, 1004-05 (8th Cir.
2008) (en banc) (per curiam)). We therefore found that section
1003.2(a) lacked any meaningful standards by which to judge the
BIA’s exercise of its discretion, and so found that we lacked
jurisdiction to review the BIA’s refusal to reopen the
petitioner’s case sua sponte. Mosere, 552 F.3d at 401.
The conclusion we reached in Mosere comported with the
collective view of the First, Second, Third, Fifth, Seventh,
Eighth, Ninth, Tenth, and Eleventh Circuits. See id. at 400-01(collecting cases). This view reflects the fact that “review is
not to be had if the statute is drawn so that a court would have
no meaningful standard against which to judge the agency’s
exercise of discretion.” Heckler v. Chaney, 470 U.S. 821, 830
(1985). We are therefore compelled to conclude that the BIA’s
decision in this case is also unreviewable.
8
III.
For the foregoing reason, we dismiss the petition for
review.
PETITION DISMISSED
9